Defendant Fales mounts in this court, as he did in the trial court,* 1 a frontal attack on section 11580.2 of the Insurance Code on federal and state constitutional grounds. Essentially he complains that the statute violates equal protection of the laws and his right of access to the courts. The focal point of the constitutional attack is the provision in section 11580.2 allowing an insurer paying a claim under an uninsured motorist endorsement “to be subrogated to the rights of the insured to whom such claim was paid against any person causing such injury or death to the extent that payment was made. Such action may be brought within three years from the date that payment was made hereunder.” (§ 11580.2, subd. (g).) Pales argues that as a result insurance companies are allowed three years from the date of their payment of the claim to bring an action *720against the person allegedly causing the injury or death while the latter, like all ordinary litigants, is allowed only one year from the date of the accident. In short, defendant contends that section 11580.2 discriminates in favor of insurance companies, even though, as subrogees, they merely stand in the shoes of the insured.
The majority decline to reach this constitutional issue upon the rationale that the uninsured motorist, actually facing the bar of the statute of limitations, “is not precluded from seeking affirmative relief in these circumstances.” To achieve this result the majority see fit to fashion an entirely new rule of procedure that would allow a person to revive and assert by way of cross-complaint a cause of action normally barred by the statute of limitations. With all respects to my colleagues, I cannot join in such a solution of the problem at hand.
This new rule propounded by the majority not only appears to be judicially declared in the face of long-standing statutes but to be postulated without a single reference to supporting authority. As a general rule, a statute of limitations will operate to bar a cause of action pleaded as a cross-complaint to the same extent that it would have barred a complaint based on that cause. (Strong v. Strong (1943) 22 Cal.2d 540, 544-545 [140 P.2d 386]; Eureka v. Gates (1902) 137 Cal. 89, 94 [69 P. 850]; Wells Fargo Bank v. Kincaid (1968) 260 Cal.App.2d 120, 124 [66 Cal.Rptr. 832]; Bank of America v. Vannini (1956) 140 Cal.App.2d 120, 127, 133 [295 P.2d 102].) The only exception to this rule pertinent to the facts of this case is that a cross-complaint is not barred if the period of limitation has not already run on the cause of action by the time the complaint is filed. (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 746 [47 P.2d 273]; Whittier v. Visscher (1922) 189 Cal. 450, 456 [209 P. 23]; McDougald v. Hulet (1901) 132 Cal. 154, 161 [64 P. 278]; Perkins v. West Coast Lumber Co. (1898) 120 Cal. 27, 28 [52 P. 118]; Goodwin v. Alston (1955) 130 Cal.App.2d 664, 669 [280 P.2d 34]. See also 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 237, p. 1095; 31 Cal.Jur.2d, Limitation of Actions, § 11, p. 440.) In other words, only the filing of the complaint serves to suspend the running of the statute. This view accords with the “general proposition that such counterclaims must be existing at the commencement of action.” (Union Sugar Co. v. Hollister Estate Co., supra, 3 Cal.2d at p. 746; italics added.) This is also the rule adopted by a majority of courts in other states. (James, Civil Procedure (1965) § 10.17, p. 487; Annot. (1940) 127 A.L.R. 909, 910.)
In the instant case, the statute of limitations had already run on defendant’s cause of action two months before plaintiff insurance company filed *721its complaint. Thus, under the authority of the above decisions, the running of the statute could not be suspended. In plain fact, any cause of action which Pales had arising out of his accident with plaintiff’s insured was barred. Nevertheless, ignoring the preponderance of authority holding otherwise, the majority would allow Pales to resurrect his dead claim. This result contradicts strong policies underlying statutes of limitation which are designed to promote stability in human affairs and prevent the adjudication of claims based on old and poorly preserved evidence.
The majority disregard these procedural rules in order to correct: what they see as the injustice arising from a statute allowing an insurance company to wait and assert its claim against an uninsured motorist after the statute of limitations has operated to bar the latter’s claim on the same transaction. But statutes of limitation are intended to vary; they reflect the legislative policy of differing the periods of limitation according to the degree of permanence of the evidence and the relative favor with which the Legislature views the type of claim or class of litigants. (See generally, Note, Developments in the Law: Statutes of Limitations (1950) 63 Harv.L.Rev. 1177, 1185-1186.)
Furthermore, while it may seem harsh in the instant case to bar a potential cross-complaint by the defendant, we must bear in mind that the statutes of limitation only operate against those who, through neglect or otherwise, fail to bring a timely claim. Defendant Pales does not contend that he was under any disability that precluded him from filing an action within the specified time. Instead, he emphasizes that the insurance company may assert a claim whereas he may not. In doing so, he ignores the fact that a similar result occurs in numerous cases.
For instance, in a common automobile accident, the party with a personal injury claim is expected to realize that he has one year within which to file suit and claim recovery. (Code Civ. Proc., § 340, subd. 3.) If he fails to do so, he will be unable to assert the claim as a cross-complaint against the other party who brings an action for property damages more than one but less than three years later. (See Code Civ. Proc., § 338, subd. 3.) Similarly, when a party who has a cause of action against a minor fails to assert his claim for personal injuries within one year, he cannot cross-complain if the minor, for whom the statute may be tolled (Code Civ. Proc., § 352, subd. 1), should file a suit at a later date. Each of the above examples demonstrates disparity of treatment, yet the result in each case is dictated by general policies underlying statutes of limitations.
While judicial disinclination to reach constitutional issues is understandable (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [195 *722P.2d 1]), nevertheless such policy does not automatically sanctify an alternative disposition of the cause. In the instant matter, long-standing statutes of Imitation and settled decisional law dictate definite results of which defendant complains on constitutional grounds. The majority decline to confront this issue. I respectfully suggest that avoidance of the constitutional issue should not be achieved by engrafting complex exceptions upon clear legislative enactments and ignoring controlling decisional law.
The trial court concluded that Insurance Code section 11580.2 does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution, or article I, sections 11 and 21 or article IV, section 16 of the California Constitution.